Beyond Politics: A Social and Cultural History of Federal Healthcare Conscience Protections

By Parr, Kimberly A. | American Journal of Law & Medicine, October 1, 2009 | Go to article overview

Beyond Politics: A Social and Cultural History of Federal Healthcare Conscience Protections


Parr, Kimberly A., American Journal of Law & Medicine


I. INTRODUCTION

The day before the inauguration of his Democratic successor, President George W. Bush oversaw the promulgation of an administrative rule that extended "sweeping" new conscience protections to healthcare providers, one which would allow them to refuse to participate in or refuse to refer for medical services to which they morally or religiously object. Enacted in a funding regulation through the Department of Health and Human Services ("HHS"), the rule - commonly called the Provider Conscience Regulation ("Regulation") - purported to clarify and implement existing federal law; by its own terms; however, the Regulation pushed the boundaries of those laws, granting protections to a broader class of individuals and across a wider range of services.3 In so doing, the Regulation sought to resolve an ongoing tension between patient access and provider autonomy, yet it served to reignite a long-standing debate over the proper role of morals in medicine.

Entering office in January 2009, President Barack Obama inherited both the Regulation and the consequent debate. Though his Administration published a proposed rescission of the rule on March 10, 2009 - with the public comment period ending April 9, 2009 - the current HHS has yet to issue a formal rescission of the rule.5

Despite its unknown fate, the Provider Conscience Regulation presents a vital opportunity for reflection. While state governments have consistently legislated in the area of provider conscience, the federal government has only done so a handful of times, and never before through an administrative regulation.' In claiming its ancestry in these rare instances of federal involvement, the Regulation then begs the question: when and why has the federal government chosen to exert its power to insulate healthcare providers' freedom of conscience?

In answering this question, I seek to surpass the superficial explanation of politics and ideology that seems to arise in most discussions of morals in medicine.7 While such interests surely motivate governmental actors, they fail to carry the weight of a comprehensive explanation of the forty-year trajectory of federal conscience protections. Indeed, though party politics and ideology may provide a framework by which individuals interpret the world, absent extenuating circumstances, they do not create the events one must interpret.

My aim, then, is to explore the world in which federal conscience provisions were enacted and to identify potential historical triggers for such protections. Due to the myriad factors that influence governmental decisionmaking, I refrain from positing a direct causal connection between the cultural events and the corresponding federal action discussed below. Rather, I suggest that certain social and cultural events introduced moral challenges to the practice of medicine, which, in turn created the perceived need for conscience protections. Thus, the judicial expansion of reproductive rights in the 1970s, the changing landscape of medical education and the healthcare industry throughout the 1990s, and the introduction of a chemical contraceptive and the influence of professional medical organizations through the new millennium relay the underlying narrative of federal conscience protections.

This Note will proceed in three parts. Part II will lay the conceptual framework for a substantive discussion of "conscience clauses," articulating a working definition of the term and introducing elements pertinent to the ongoing debate over their validity. Part III will provide the legal and social history of federal conscience protections in chronological order, beginning with the Church Amendment of 1973 and concluding with the Provider Conscience Regulation of 2009- This section will both describe the substance of the legislation (or administrative rule) and explore the relevant advancements in society or culture that underlie them. I will then conclude in Part IV, arguing that this historical analysis reveals a paradox in which various attempts to expand patients' access to care triggers a perceived threat to provider conscience, with the federal government consistently resolving this tension in favor of the provider. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Beyond Politics: A Social and Cultural History of Federal Healthcare Conscience Protections
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.